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What is sure to be a contentious battle, over the nomination and the confirmation of the president’s soon to be Supreme Court appointee, will be fast upon us. But this is a battle best left to those who have an interest in the outcome of that battle. Which is to say, those who have something to win within this system, whatever that outcome might be. Those who have something to win within this system are a distinct group from those who lose, the winners always win and the losers always lose regardless of the outcome. The overarching issue is not one of political party, but that of an institution that is structured to clearly and consistently separate the “winners” and the “losers.” A quick look at the history of the Supreme Court, the country, the constitution, and the Declaration of Independence makes clear distinctions between the “winners” and the “losers.” It will become clear that the winners are always the winners and the losers are always the losers regardless of the outcome of such decisions.

Distinctions between wannabe justices’ philosophies are relatively meaningless; that is, they are distinctions without differences (imagine arguing how best, or most humanely to kill a prisoner). Besides perspective justices’ differences regarding specific issues (e.g. gun-control, abortion) there is very little difference in prevailing philosophies, and those differences break down upon closer inspection.

The differences in philosophies are most often looked at as being between those justices who see the constitution as a living document (often times called activist judges) and those who see the constitution as a steadfast document (often times called traditionalist or conservative judges). The arguments for both approaches have been played out and will not be dealt with here. In any case, both types of judges essentially do the same thing ­ namely, they maintain the status quo.

Therein lies the rub; regardless of what type of nominee is confirmed, conservative or activist, the traditional winners are the winners and the traditional losers are the losers. This is why it is best for us traditional losers – the powerless, poor, working class, minorities, immigrants, and progressives – to let the traditional winners fight over the distinction without differences. This is not to say that the losers simply give up far from it! But we have to realize that such a fight is a supreme waste of time that necessarily takes attention and energy away from things more pertinent to making society more just and equitable.

To Borrow a Line

Thomas Jefferson famously wrote in the Declaration of Independence that certain truths are self-evident and that the Creator endowed us with certain unalienable rights, “that among these are Life, Liberty and the pursuit of Happiness.” He lifted this line, of course, from John Locke’s Second Treatises. Jefferson changed it slightly: the third right mentioned becomes the “pursuit of Happiness” rather than that of property as Locke wrote it. Jefferson’s writings, inspiring enough for his compatriots while well-suited to be used against the King of England, were too radical to be used in the founding document, and consequently no such rights are seen in the Constitution.

And although “Life, Liberty and the pursuit of Happiness” were not too radical to use as a rhetorical stick to beat over the head of ol’ King George III, Locke’s use of “property” perhaps was. If we think back to who owned property in revolutionary times (white males), how many people actually owned property (very few), and how the ownership of property or lack thereof was used to exclude the “losers” from participation in the new government (property ownership as a prerequisite for serving in the legislature and voting), it becomes abundantly clear that Jefferson’s revision was not by mistake.

In fact, even though Jefferson’s writing was decidedly conservative, it was radical enough that some of those who fought the revolutionary war were perhaps taken up by the rhetoric after the war. Such was the case with Shay’s rebellion, though the seldom mentioned in American history courses. The very men who fought the Revolutionary War had the misfortune of believing that rhetoric. However, debtors prisons, the seizure of farms by banks, and poll taxes all seemed to be the antithesis of those high ideals spewed by the founders against King George III. The veterans of the Revolutionary war subsequently fought a rebellion against the Massachusetts government. After the rebellion was crushed, the rebels were tried, convicted, and sentenced to death.

The right to property that Locke posited would not do.

Although Jefferson’s writings were decidedly more conservative than Locke’s, Locke should not be thought of as a radical with a true sense of equity and social justice. Locke, of course, thought that governments should protect private property. As such, they should not infringe on the rights of property owners. Private property was that land which was taken out the commons by the mixing of one’s labor with the land. Locke himself saw this definition as justification for the white Europeans taking land from Native Americans. Land in the Americas, inhabited by the aboriginal people of the Americas, was seen as land in fallow and thus available for white Europeans to take.

Such a justification certainly moves far from social justice; however, it was greatly problematic for Jefferson and the new country. Most of those mixing their labor with the land were in fact landless, and a great many of them (slaves) had no liberty. It wasn’t Jefferson, Washington, Madison, and Hamilton – the great land holders of the new country – who were mixing their labor with the land, but their indentured servants and slaves.

The founding documents were written by those who had a distinct interest in maintaining the power imbalance; the Constitution and the Declaration of Independence reflect these interests. These documents were written from above. It is safe to say that these documents would look very different had they been written by those below: slaves, Indians, women, indentured servants, the landless, the powerless, the “losers.”

The very notion that the new nation was a democracy or a republic or any combination of those two is repugnant on its face. Any nation that excluded upwards of 90% of its inhabitants from any participation or say in their future should be called an oligarchy at best. This is what our founders, the Constitution, Declaration of Independence, and our government established! This is the tradition that our legislative, executive, and yes our judicial branches come out of.

Possible justices, whichever philosophical camp they come out of, activist or conservative, will do little to serve the “losers.” Whichever camp wins out, the winners will still be the winners and the losers the losers.
The Supreme Court and Progress

One cannot deny that the Supreme Court has handed down some decisions that have greatly made our nation more equitable and just, and at times these decisions might even be seen as progressive (unfortunately, there are far more decisions that do just the opposite). It is, however, dangerous to mistake the genesis of these decisions.

There are two reasons for this danger. First, it is simply false. The legislature, the executive, and the judicial have not progressed this nation. They have gone along with popular movements kicking and screaming. It was not any of the three branches of government that lead to the advances in voting rights, labor rights or the end of slavery, it was mass popular movements. It was not Cleveland, Harrison, McKinley, Teddy Roosevelt, Taft, Wilson, or even FDR that had anything to do with advances in labor right or suffrage. It wasn’t Brandeis, Berger, Brennan, Holmes or Marshall that lead to the advancement of this nation as a more equitable state. It wasn’t JFK, Robert Kennedy or Johnson in the White House, or Mansfield and Dirksen in the Senate that lead to the Civil Rights Act of 1964. It was people on the street marching and fighting for a more equitable nation. It was many of those same people that brought about the end to the Vietnam War, not the mainstream media or any of those mentioned above. It is this very misperception, the creation of dubious hero leaders, that leads to the second danger: disempowerment. We are left to petition our overseers and vote for leaders in the hopes that they will make things better.

If only we could get a liberal justice on the bench, if only Kerry were to win the election, if only the Democrats could take control of the congress. A liberal justice would still act in the manner and tradition of the Supreme Court, which is in defense of the powerful; Kerry would have taken us to Afghanistan and Iraq and kept us there, and a Democrat controlled congress has in the past and would still legislate in favor of those in power, and circumvent their own responsibility just as when they gave the first George Bush and Bill Clinton the right to fight and continue a war in Iraq throughout the 90s without a declaration of war from congress.

When advancements that were the result of people on the street fighting for a more equitable society are lost to the myth of great men (our leaders) advancing history, we (the “losers”) are doomed to throwing our support to one of two distinctions without a difference, and we still lose.